United States District Court, D. Oregon, Medford Division
OPINION & ORDER
AIKEN United States District Judge.
matter comes before the Court on Defendant Carl Gene
Dunlap's Motion to Vacate or Correct Sentence under 28
U.S.C. § 2255. ECF No. 93. The Court has determined that
no hearing is required and the motion is DENIED.
was convicted of Felon in Possession of a Firearm in
violation of 18 U.S.C. § 922(g)(1) following a jury
trial in May 2015. Dunlap had three relevant prior
convictions, all in Oregon: (1) a 2001 conviction for Robbery
III; (2) a 2004 conviction for Assault III; and (3) a 2013
conviction for Coercion.
trial, Dunlap was represented by attorney Ronald Howen. For
the sentencing stage of the case, Howen was joined by Brian
Butler and Elizabeth Dailey of the Oregon Federal Public
Defender's Office. After hearing extensive argument by
counsel, the Court ruled that Dunlap's conviction for
Robbery III was not a violent felony for purposes of the
Armed Career Criminal Act (ACCA), but that Dunlap's
convictions for Assault III and Coercion were violent
felonies for purposes of the ACCA and "crimes of
violence" for purposes of U.S.S.G. § 2K2.1 and
4B1.2. Opinion & Order, ECF No. 88, at 11, 15, 18.
February 17, 2016, Dunlap was sentenced to 120 months,
concurrent with the remaining three months of a prior
three-year sentence for Coercion imposed by the Oregon state
courts. Dunlap did not file a direct appeal of his sentence.
28 U.S.C. § 2255, a federal prisoner in custody under
sentence may move the court that imposed the sentence to
vacate, set aside, or correct the sentence on the ground
[T]he sentence was imposed in violation of the Constitution
or laws of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence
was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack....
28 U.S.C. § 2255(a).
warrant relief, a petitioner must demonstrate that the error
of constitutional magnitude had a substantial and injurious
effect or influence on the guilty plea or the jury's
verdict. Brechl v. Abrahamson, 507 U.S. 619, 637
(1993); see also United States v. Montaho, 331 F.3d
1052, 1058 (9th Cir. 2003) ("We hold now that
Brecht's harmless error standard applies to
habeas cases under section 2255, just as it does to those
under section 2254.").
petitioner seeking relief under § 2255 must file his
motion within the one-year statute of limitations set forth
in § 2255(f). The limitations period runs one year from
the latest of four dates: (1) when the judgment of conviction
became final; (2) when the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
governmental action; (3) when the right asserted is initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; and (4) when the
facts supporting the claim or claims presented could have
been discovered through the exercise of due diligence, 28
U.S.C, § 2255(f).
§ 2255, "a district court must grant a hearing to
determine the validity of a petition brought under that
section, '[u]nless the motions and the files and records
of the case conclusively show that the prisoner is
entitled to no relief.'" United States v.
Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (alteration
and emphasis in original) (quoting 28 U.S.C. § 2255). In
determining whether a § 2255 motion requires a hearing,
"[t]he standard essentially is whether the movant has
made specific factual allegations that, if true, state a
claim on which relief could be granted." United
States v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2011)
(alteration in original, internal quotation marks and
citation omitted). A district court may dismiss a § 2255
motion based on a facial review of the record "only if
the allegations in the motion, when viewed against the
record, do not give rise to a claim for relief or are
'palpably incredible or patently frivolous.'"
Id. at 1062-63 (quoting United States v.
Schaflander, 743 F.2d 714, 717 (9th Cir. 1984)); see
also United Slates v. Hearst, 638 F.2d 1190, 1194 (9th
Cir. 1980). Conclusory statements in a § 2255 motion are
insufficient to require a hearing. Hearst, 638 F.2d
court denies a habeas petition, the court may issue a
certificate of appealability if "jurists of reason could
disagree with the district court's resolution of [the
petitioner's] constitutional claims or that jurists could
conclude the issues presented are adequate to deserve
encouragement to proceed further." Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003); see 28
U.S.C. § 2253(c)(1). Although the petitioner is not
required to prove the merits of his case, he must demonstrate
"something more than the absence of frivolity or the
existence of mere good faith on his or her part."
Miller-El, 537 U.S. at 338 (internal quotation marks
and citation omitted).
motion rests on four grounds: (1) Dunlap asserts that he was
not given credit for time served, despite the Court's
oral pronouncement that he would receive a concurrent
sentence; (2) Dunlap argues that his state court conviction
for Coercion is not a "crime of violence" under the
sentencing guidelines; (3) Dunlap contends that his
conviction for Assault III was not a "crime of
violence" because he did not face punishment exceeding
one year; and (4) Dunlap's counsel was ineffective for
failing to file a direct appeal of Dunlap's sentence.